| People v Gumbs |
| 2008 NY Slip Op 09173 [56 AD3d 345] |
| November 20, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Antoine Gumbs, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Vincent Rivellese of counsel), forrespondent.
Judgment, Supreme Court, New York County (Gregory Carro, J., at suppression hearing;Maxwell Wiley, J., at jury trial and sentence), rendered October 18, 2006, convicting defendantof murder in the second degree, attempted murder in the second degree, and assault in the seconddegree, and sentencing him, as a second violent felony offender, to a term of 25 years to life,consecutive to concurrent terms of 25 years and seven years, respectively, unanimously affirmed.
On January 5, 2005, defendant suggested to Chad Knight and Jude Myrthil that they go tobuy sneakers and other items at a particular store in Manhattan. Myrthil drove defendant's car toWest 27th Street and the three men went up to the second floor of a warehouse-type buildingcontaining several stores. Defendant purchased sneakers and boots from Ali Nasserdine andbegan to leave with Knight and Myrthil. However, he turned around and walked back to the storeas Knight and Myrthil waited by the stairwell.
Ximena Rodriguez, an employee of Nasserdine, testified that a man fitting defendant'sdescription tried to return a pair of sneakers but Nasserdine refused, offering instead a storecredit. Defendant became enraged, drew a gun and shot Nasserdine. Although Rodriguez did notsee anyone with defendant when he returned to the store, Samer El-Nader, who worked atanother store some 20 feet away, testified that Knight and Myrthil were about four feet awayfrom defendant at the time of the shooting. El-Nader also testified that he thought Knight andMyrthil were with defendant but that they did not "do or say anything at all." Rodriguez testifiedthat the shooter stepped back in the direction of Knight and Myrthil before drawing the gun andthen stepped back toward Nasserdine and shot him.
Knight testified he had not been paying much attention until defendant drew the gun. Heclaimed he was talking on his cell phone but did not recall with whom he had been speaking. Instark contrast to El-Nader's testimony, however, Knight swore that he and Myrthil wereapproximately 14 feet away from defendant when defendant drew the gun. Nasserdine died fromfive gunshot wounds to the head and El-Nader was shot once in the back. Knight testified thatwhen defendant fired the first shot, he and Myrthil ran down the stairs, out of the building andtoward defendant's car. He stated that although he and Myrthil did not want to accompany [*2]defendant, they did speak with defendant in his car before they tookthe subway back to the Bronx without him. Knight later gave a statement to the police butomitted any mention of meeting defendant and Myrthil at defendant's car after the shooting.
A security guard in the lobby of the building testified that after hearing shots, he saw twoblack males run from the stairway toward the street. He heard two more shots and saw anotherblack male exit the stairway and place a revolver in his waistband. He also testified that hethought the man with the gun caught up with the first two men and that all three walked towardFifth Avenue.
One of the issues on this appeal concerns the denial of defendant's request to instruct the juryto deliberate whether Knight was an accomplice-in-fact whose testimony would thus requirecorroboration under CPL 60.22. We find that the court erred in declining to submit that issue tothe jury. Such an instruction is properly denied only if there is no reasonable view of theevidence that the witness "participated in an offense based upon some of the same facts orconduct which make up the offense on trial" (People v Berger, 52 NY2d 214, 219[1981]). "[I]f different inferences may reasonably be drawn from the proof regarding complicity,. . . the question should be left to the jury" (People v Basch, 36 NY2d 154,157 [1975]).
Whether the foregoing testimony was sufficient to require an accomplice-in-fact instructionis an issue we need not resolve, for there was additional highly relevant evidence. The Peopleelicited the testimony of an informant who testified that he had gotten to know defendant wellwhile they were in prison. In essence, the informant testified that defendant had admitted hisinvolvement in the crime as the shooter and provided various details regarding the aftermath ofthe crime, details the informant himself could not have known. More importantly for ourpurposes, however, the informant testified that defendant "told me that he did a robbery; that hismens put him down with it" and that he, defendant, had shot two individuals.
The statement by defendant that his "mens" had "put him down with" a robbery reasonablycan mean that Knight and Myrthil had alerted defendant to a robbery opportunity or that they hadaccused him of robbery. It is enough, however, that a reasonable understanding of that statementis that Knight and Myrthil alerted defendant to this robbery opportunity and, viewed inconjunction with the other evidence, accompanied defendant and acted as his accomplices.Indeed, the People conceded as much at oral argument. Asked if there was a reasonable view ofthe statement that defendant was saying his "mens" had alerted him to this robbery scenario, theassistant district attorney responded, that, "Yes, you could look at it that way." This answerreflects appropriate candor and not any imprudent concession.
However, we also find that under the applicable standard for nonconstitutional error, therefusal to give an accomplice-in-fact instruction was harmless because "the proof of guilt wasoverwhelming and there was no significant probability that the jury would have acquitted had theerror not occurred" (People v Grant,7 NY3d 421, 424 [2006]).[FN*][*3]Here, defendant admitted his involvement in the crime as theshooter and related details of the aftermath of the crime, as corroborated by evidence independentof Knight's testimony. Moreover, there was a wealth of other evidence aside from Knight'stestimony, the cumulative effect of which was that the People provided overwhelming evidencesatisfying New York's corroboration requirement, which requires "only enough nonaccompliceevidence to assure that the accomplices have offered credible probative evidence" (People vBreland, 83 NY2d 286, 293 [1994]).
Defendant moved to suppress a showup identification as fruit of an allegedly unlawful arrest.Any error by the motion court in summarily denying the motion without granting aDunaway hearing was harmless under the circumstances of the case. Defendant did notmove to suppress Knight's in-court identification, and would have had no basis upon which to doso, since Knight (the same companion defendant argued should have been the subject of anaccomplice charge) was well acquainted with defendant. Thus, even if the court had granteddefendant a Dunaway hearing, and had he prevailed at the hearing, his only gain wouldhave been suppression of the showup itself, which added precious little to the People's case.
Defendant's challenges to the People's summation are unpreserved and we decline to reviewthem in the interest of justice. Were we to review those claims, we would find no basis forreversal (see People v Overlee, 236 AD2d 133, 141 [1997], lv denied 91 NY2d976 [1998]; People v D'Alessandro, 184 AD2d 114, 118-119 [1992], lv denied 81NY2d 884 [1993]). However, some comment is warranted concerning the prosecutor's statementof personal outrage at arguments made by defense counsel on summation, where she had assertedthat the prosecutors had both elicited the testimony from a witness that "they want[ed] to hear"and had failed to seek phone records that might have corroborated Knight's claim that he wastalking on his cell phone "because they don't really want to know whether he really was on thephone." The prosecutor responded in his summation: "I am outraged and insulted that [defensecounsel] actually suggested this, that I have something to do with hiding evidence, in trying toframe an innocent man. That is an outrage."
Without question, defense counsel was suggesting that the prosecutors were complicit inwhat amounted to an effort to convict an innocent person. That suggestion invited a response, theterms of which otherwise would not be proper, by permitting the prosecutor to respond to thespecter of prosecutorial misconduct injected into the case by defense counsel (see People vMarks, 6 NY2d, 67, 77-78 [1959], cert denied 362 US 912 [1960]). The prosecutorthus could not be faulted if he had characterized as outrageous defense counsel's effort to impugnhis integrity in the course of advancing an argument based on rank speculation. Had he done so,the jury might well have inferred that he was outraged. But the expressed statement of hissubjective state of outrage was not proper, albeit not rising to the level of reversible error.
We also reject defendant's ineffective assistance of counsel claim (see People vBenevento, 91 NY2d 708, 713-714 [1998]; cf. Strickland v Washington, 466 US 668[1984]).
Finally, we see no basis for reducing the sentences imposed. Concur—Saxe, J.P.,Sweeny, McGuire and Freedman, JJ.
Footnote *: Defendant never suggested attrial that there was a constitutional dimension to his claim that the issue of whether the witnessKnight was an accomplice should be submitted to the jury, and thus the appellate claim ofconstitutional error is not preserved for review (see People v Angelo, 88 NY2d 217, 222[1996]). Moreover, it is meritless in any event as the Federal Constitution does not requirecorroboration of an accomplice's testimony (see Caminetti v United States, 242 US 470,495 [1917]).